Comprehensive Health Servs., LLC V United States – Canceling CICA Automatic Stay – Government, Public Sector

Comprehensive Health Servs., LLC V United States – Canceling CICA Automatic Stay – Government, Public Sector

Ward & Berry

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Would you view the acquisition of COVID-19 tests as an
“urgent and compelling” reason to depart from full and
open competition? The Court of Federal Claims had an opportunity to
weigh in on this notion when Comprehensive Health Services, LLC
(“CHS”) protested an award and challenged a decision of
the Federal
Emergency Management Agency (FEMA) to override the automatic
stay of performance required by the Competition in Contracting Act (CICA). The Court relied on FEMA’s J&A in evaluating the
override in light of the Reilly’s Wholesale factors, and
the Court found FEMA’s argument persuasive that current
circumstances were “urgent and compelling.” The three
Reilly’s Wholesale factors, which are not required to
be used, are as follows: (1) whether significant consequences will
necessarily occur if the stay is not overridden; (2) the potential
cost associated with the stay; and (3) the impact of the override
on competition and the integrity of the procurement system.

The protester based its protest on two arguments: “(1)
FEMA’s sole source award is contrary to statute and regulation
and is an abuse of discretion as FEMA cannot show use of other than
full and open competition is justified; and (2) FEMA’s sole
source award rested on a lack of advance planning, contrary to
statute and regulations.” The Court held that FEMA’s overriding of the automatic stay
was justified in the unprecedented times of the COVID-19 pandemic
and that it did not result from a lack of advance planning.
Comprehensive Health Services helps identify an example of
urgent and compelling reasons to depart from full and open
competition.

To justify FEMA’s quick suspense and ultimate sole-source
award, FEMA required the Agency complete a Justification and Approval (J&A) for not
using “full and open” competition based on “urgent
and compelling circumstances per FAR
33.104(c)(2)(ii)”. After FEMA filed its J&A to
override the stay, the protester again sought to implement the stay
and delay the COVID-19 testing awarded. In Comprehensive Health Servs., LLC v. United
States, No. 20-1585C, 2020 WL 6881207 (Fed. Cl. Nov. 24,
2020), CHS attempted to delay the award of a contract for
COVID-19 testing through the automatic implementation of a stay of
award. The protester wanted a fair opportunity to compete for the
contract, which the protester felt did not happen because the total
time from the Request for Quote to the submission deadline was five
hours and forty-seven minutes.

Comprehensive Health Servs., LLC v. United
States, No. 20-1585C, 2020 WL 6881207 (Fed. Cl. Nov. 24,
2020) References

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances. POPULAR ARTICLES ON: Government, Public Sector from United States Reilly’s Wholesale Produce v. United
States, 73 Fed. Cl. 705, 711 (2006)

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